Authorisation and replacement of applicants: Bolton v WA [2004] FCA 760

During the mid-2000s, the South West Aboriginal Land and Sea Council worked with Noongar native title applicants to rationalise claims in the South West, including an ambitious project to combine all existing claims into a single united Noongar claim. NTRBs are under a positive obligation to minimise the number of applications covering an area of land or waters under s 203BE(3) of the Native Title Act 1993 (NTA). The proposed rationalisation involved an enormous meeting schedule to meet with claimant groups and family groups within and across claims in the South West. Part of this rationalisation was to identify family groups and determine appropriate representation structures within the groups to form the basis for the applicant groups. As part of this process, the six main claimant groups applied to the Court to change a number of the named applicants in each existing claim (under s 66B) to mirror the new representative structure proposed for the single claim.

The applications were unsuccessful, with the Federal Court finding that the applicants were not properly authorised by the whole claim group to make the decisions to replace the applicants. The resulting decision in Bolton v WA2 provides a comprehensive discussion of the requirements for the requirements of a successful applications under s 66B as well as the principles of authorisation that underlie it. This paper examines the decision in Bolton against the backdrop of similar cases involving removal of applicants and authorisation to determine current state of the law and the implications for practice.